Duke v. Missouri Pacific Railway Co.

• Decision Date: 21 December 1889
• Citation: 12 S.W. 636,99 Mo. 347
• Parties: Duke v. The Missouri Pacific Railway Company, Appellant
• Court: Missouri Supreme Court

12 S.W. 636

99 Mo. 347

Duke v. The Missouri Pacific Railway Company, Appellant

Supreme Court of Missouri

December 21, 1889

Appeal from Lafayette Circuit Court. -- Hon. J. P. Strother, Judge.

Reversed and remanded.

Adams & Buckner for appellant.

(1) The instructions of the court, given on behalf of plaintiff submit to the jury the question of expense -- of professional services, physicians, nurses, drugs and medicines -- when there was absolutely no evidence that plaintiff ever paid a cent, or became liable to pay a cent, for the above-named items mentioned in the instruction. Such an instruction is improper. White v. Chaney, 20 Mo.App. 397; Benson v. Railroad, 78 Mo. 504; Lester v Railroad, 60 Mo. 265. (2) The instructions asked by the defendant, and refused by the court, ought to have been given, because they, taken as a whole, present to the jury a proper and practical test by which to measure the duty of defendant to its passengers. The instructions given by the court of its own motion ought not to have been given, because the test as therein given is an impractical test, and impossible to be proven. The effect of the law, as given by the court of its own motion, practically makes the defendant in its business as a common carrier of persons, an insurer. Such is not the law. Rorer on Railroads, sec. 11, p. 955, and authorities there cited; Meir v. Railroad, 64 Pa. St. 225; Taylor v. Railroad, 48 N.H. 304; Tuller v. Talbut, 23 Ill. 357. (3) The test of care required of defendant, as proposed in its second instruction, which told the jury that, "at the time said train was overturned, the employes of defendant were exercising, and had exercised, the highest practical diligence which capable and faithful railroad men would exercise under similar circumstances," is a proper standard. It made the test practical, and the means of proving it a possibility. See specially the instructions approved in case of Meir v. Railroad, 64 Pa. St. 225. See also 3 Am. Rep. 581; Tuller v. Talbut, 23 Ill. 357; Railroad v. Halloren, 53 Tex. 46.

A. Comingo and Andrews & Lee for respondent.

(1) In suits by a passenger against a common carrier, testimony that the plaintiff was a passenger, that the car in which she was riding was overturned, and that, as one of the proximate results, she was injured, makes a prima facie case for remunerative damages, both direct and consequential. (2) The court did not err in the giving or refusing of instructions.

OPINION

Brace, J.

-- This is an action for damages, for personal injuries, alleged to have been sustained by the plaintiff, while a passenger on one of defendant's passenger trains, caused by the derailment of the train, and the overturning of the car on which plaintiff was seated, and its precipitation down an embankment, through the negligence of the defendant's servants. The jury found for the plaintiff, and assessed her damages at five thousand dollars.

I. No errors are assigned on the admission or exclusion of evidence. The instructions, as a whole, presented to the jury, not unfavorably to the defendant, the measure of care which a carrier of passengers is required to exercise, and defendant, in the argument, concedes that there was evidence given which, under proper instructions, would authorize a verdict for the plaintiff, but complains that "the amount of the verdict under the evidence is such as to justify the belief that the jury were misdirected." So that, practically, the only questions to be enquired into in this case arise upon the instructions given upon the subject of damages and the amount assessed. The allegation of damages in the petition is "that, on account of said injuries, it was necessary for plaintiff to expend, and she did expend, a large sum of money for professional services of physicians and nurses, and for drugs, to-wit, one thousand dollars, and was damaged in bodily pain, anguish and suffering, and in the permanent injury of her hip and ankle and the loss of her suit of hair, in the sum of twenty-five thousand dollars."

So much of the instruction for the plaintiff as bears upon the question of damages, and to which objections are urged, is as follows: "And if you further believe that on account of such injuries, it became and was necessary for plaintiff, and that she did expend large sums of money for professional services, physicians and nurses, and also for drugs and medicines, and that, from the overturning of the train as aforesaid, she suffered mental anguish and bodily pain, and was, as to the physical parts of her body heretofore mentioned, permanently injured and disabled, and that the overturning of said car, in which the plaintiff was seated as a passenger, was the direct and proximate cause thereof, you will find for the plaintiff, and assess her damages at such sum as will, in your opinion, compensate her therefor, not to exceed twenty-five thousand...